Cite as U.S. v. Hardgrave, 214 F.2d 673 (7th Cir. 1954)
UNITED STATES v. HARDGRAVE
No. 11107.
United States Court of Appeals, Seventh Circuit.
July 9, 1954.
Douglas F. Stevenson, Chicago, Ill., for appellant.
Joseph H. Lesh, U. S. Atty., Fort Wayne, Ind., James E.
Keating, Asst. U. S. Atty., South Bend, Ind., Phil M. McNagny, Jr.,
Asst. U. S. Atty. Fort Wayne, Ind., James H. Pankow, Asst. U.
S. Atty., Hammond, Ind., for appellee.
Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
Defendant, Hardgrave, was indicted in September, 1951 for
violating provisions of the National Firearms Act. [footnote 1] A
six count indictment [footnote 2] was returned against him,
grounded on certain requirements of that Act and charging him with
various violations of it, as follows:
U. S. Code Requirement Violation of
Count Title Section Section Disposition
I. 26 section 2720 (a) section2726(a)
Found Guilty
II. 26 section 2725 section 2726(b)
Dismissed by Government
III. 26 section 3261 (b) section 2726 (a)
Found Guilty
IV. 26 section 2723 section 2726 (a)
Found Guilty
V. 15 section 902(f) Found
Not
Guilt
y
VI. 15 section 902(i) Found
Not
Guilt
y
After the trial jury returned its verdict, hereinabove
tabulated, Hardgrave was sentenced to five years imprisonment on
counts I, III and IV, respectively; each such sentence to run
consecutively.
Denial, below, of defendant's petition filed under 28 U.S.C.
section 2255; 28 U.S.C.A. section 2255 for correction of his sen-
tence, precipitated this appeal. Since the reasons and grounds
underlying the relief, thus sought, are embedded in several
provisions of the National Firearms Act, supra, its provisions
constitute the backdrop against which Hardgrave's contentions must
be examined.
At the time when this defendant allegedly engaged in the
proscribed course of conduct, for which he was indicted and tried,
the pertinent subdivisions of section 2726, [footnote 3] Subchapter
B-Machine Guns and Short-Barrelled Firearms of the National
Firearms Act, provided:
"(a) Possessing firearms unlawfully transferred.
"It shall be unlawful for any person to receive or possess
any firearm which has at any time been transferred in
violation of sections 2720, 2721(b), 2722, 2723, 2727, and
2731 of this subchapter.
"(b) Removing or changing identification marks.
"It shall be unlawful for anyone to obliterate, remove,
change, or alter the number or other identification mark
required by section 2725. Whenever on trial for a violation
of this subsection the defendant is shown to have or to have
had possession of any firearm upon which such number or mark
shall have been obliterated, removed, changed, or altered,
such possession shall be deemed sufficient evidence to author-
ize conviction, unless the defendant explains such possession
to the satisfaction of the jury. * * *" (Italics ours.)
Counts I, III and IV, of this indictment, charged, in
substance conduct under, and non-compliance with these three
sections of the National Firearms Act, supra:
Count I. "section 2720. Tax
"(a) Rate. There shall be levied, collected, and paid upon
firearms transferred in the continental United States a tax at
the rate of $200 for each firearm: Provided, That the transfer
tax on any gun with two attached barrels, twelve inches or
more in length, from which only a single discharge can be made
from either barrel without manual reloading, or any gun
designed to be held in one hand when fired and having a barrel
twelve inches or more in length from which only a single dis-
charge can be made without manual reloading, shall be at the
rate of $1. The tax imposed by this section shall be in
addition to any import duty imposed on such firearm.
"(b) By whom paid. Such tax shall be paid by the
transferor. * * *"
The following section is under Part VIII, Firearms, chapter
27, Occupational Taxes, Subchapter A-Special provisions; 26 U.S.C.
Count III. "section 3261. Registration
"(b) Persons in general. Every person possessing a
firearm shall register, with the collector of the district in
which he resides, the number or other mark identifying such
firearm, together with his name, address, place where such
firearm is usually kept, and place of business or employment,
and, if such person is other than a natural person, the name
and home address of an executive officer thereof: Provided,
That no person shall be required to register under this sub-
section with respect to any firearm acquired after July 26,
1934, and in conformity with the provisions of this part and
subchapter B of chapter 25."
Count IV. "section 2723. Order forms
"(a) General requirements. It shall be unlawful for any
person to transfer a firearm except in pursuance of a written
order from the person seeking to obtain such article, on an
application form issued in blank in duplicate for that purpose
by the Commissioner. Such order shall identify the applicant
by such means of identification as may be prescribed by
regulations under this subchapter and Part VIII of subchapter
A of chapter 27: Provided, That, if the applicant is an
individual, such identification shall include fingerprints and
a photograph thereof.
"(b) Contents of order form. Every person so
transferring a firearm shall set forth in each copy of such
order the manufacturer's number or other mark identifying such
firearm, and shall forward a copy of such order to the
Commissioner. The original thereof with stamps affixed, shall
be returned to the applicant.
"(c) Prior transfers. No person shall transfer a firearm
which has previously been transferred on or after July 26,
1934, unless such person, in addition to complying with
subsection (b), transfers therewith the stamp-affixed order
provided for in this section for each such prior transfer, in
compliance with such regulations as may be prescribed under
this subchapter for proof of payment of all taxes on such
firearms. * * * "
Section 2729, of the Act, supra, contains these sanctions:
"Any person who violates or fails to comply with any of the
requirements of this subchapter and Part VIII of subchapter A of
chapter 27 shall, upon conviction, be fined not more than $2,000 or
be imprisoned for not more than five years, or both, in the dis-
cretion of the court." (Italics supplied.)
Several distinct and separate offenses are embraced by the
foregoing statutory arrangement. Yet defendant contended before,
and urges here, that his mere possession of a sawed-off shotgun
does not constitute the series of offenses proscribed by Congress,
or that several offenses cannot be derived from one act of
possession. From these propositions he argues that the ceiling on
his total punishment is five years, not five years imprisonment on
each count, under which he was convicted.
It was held in the opinion filed below, denying Hardgrave's
petition for correction of sentence, that consecutive sentences
could be validly imposed under the authority of Fleish v. Johnston,
9 Cir., 1944, 145 F.2d 16 and Crapo v. Johnston, 9 Cir., 1944, 144
F.2d 863, on each count of the indictment. At the same time the
trial judge noted that the: "United States erred technically" by
charging that the requirements of section 3261(b), supra, had been
violated under section 2726(a), supra, instead of section 2729,
supra, prescribing penalties for violation of section 3261(b). But
he concluded that Hardgrave was neither misled nor prejudiced
because section 3261 contained the gist of this offense.
Fed.R.Crim.P. 7, 18 U.S.C.A.
Despite able and capable arguments presented to us by court
appointed defense counsel, we are not persuaded that imposition of
these consecutive sentences constituted error. Montgomery v.
United States, 4 Cir., 1945, 146 F.2d 142, and Fleish v. Johnston,
9 Cir., 1944, 145 F.2d 16, disposed of on virtually the same
issues, are determinative of the questions raised by Hardgrave.
Since we are in accord with these decisions of the Fourth and Ninth
Circuits, they will be followed in the instant case.
We examined United States v. Universal C.I.T. Credit
Corporation, 1952, 344 U. S. 218, 73 S.Ct. 227, 97 L.Ed. 260, where
an information filed under sections 15 and 16(a) of the Fair Labor
Standards Act, [footnote 4] was reviewed under a hypothesis similar
to that relied upon by Hardgrave.
Mr. Justice Frankfurter spoke for the majority. Drawing upon
Congressional debates [footnote 5] he pointed out that
"Although the separate offense clause for record-keeping
violations was deleted early in the legislative process, the
other separate offense clause was attached in debate precisely
because it would authorize the sort of multiplication of
offenses by the number of employees that the information * *
* represents. Indeed, multiplication in this information goes
beyond what even the original bills would have authorized."
223 U.S. at page 223, 73 S.Ct. at page 230.
Justice Frankfurter stated it was the history and language of the
legislation, then before the Court, that repelled application of
Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306. Nothing determined in the Universal Corporation case
supra, supports Hardgrave's contentions. The condition of
possessing and receiving a shotgun on which the transferor has
failed to pay the requisite tax, and possessing that unregistered
firearm, receiving and possessing it when it has not been
transferred on statutory forms, bear no resemblance to an erroneous
managerial decision which the government prosecutor turns into a
multiplicity of offenses, by considering each resulting
underpayment in a single week, as a separate offense. But each
offense of which Hardgrave stands convicted contains a different
element. He had to meet three distinct requirements; each
requirement necessitated proof of a fact not essential to the
other. We think that the status of Blockburger v. United States,,
1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, as the basis for
Montgomery v. United States, 4 Cir., 1945, 146 F.2d 142, and Fleish
v. Johnston, 9 Cir., 1944, 146 F.2d 16 remains unimpaired,
especially since Chief Justice Warren relied on the Blockburger
decision when he delivered the majority opinion in Pereira v.
United States, 1954, 347 U.S. 1, 9, 74 S.Ct. 358, 363 saying inter
alia:
"Sections 1341 and 2314 of Title 18 constitute two separate
offenses, and a defendant may be convicted of both even though
the charges arise from a single act or series of acts, so long
as each requires the proof of a fact not essential to the
other.
The judgment of the District Court is affirmed.
Affirmed.
FOOTNOTES
1. Approved June 26, 1934, 48 Stat. 1236, c. 757; 26 U.S.C. section
2720 et seq. (1946); 26 U.S.C.A. section 2720 et seq.
2. We have hereinafter reproduced only those counts on which
Hardgrave was found guilty:
Count 1. "On or about the 14th day of April, 1951, in the
District of Northern Indiana, Earl Adrian Hardgrave, possessed a
firearm, namely, a shotgun with a barrel less than eighteen inches
in length, which had been transferred without the payment of a
transfer tax in the sum of $200.00 its required by Section 2720(a),
Title 26, United States Code, in violation of Section 2720(a),
Title 26, United States Code.
Count III. "on or about April 14, 1951, in the District of
Northern Indiana, Earl Adrian Hardgrave, possessed a firearm,
namely, a shotgun with a barrel less than eighteen inches in
length, which firearm had never been registered with the
Commissioner as required by Section 3261(b), Title 26, United
States Code, in violation of Section 2726(a), Title 26, United
States Code.
Count IV. "On or about the 14th day of April, 1951, in the
District of Northern Indiana, Earl Adrian Hardgrave, possessed a
firearm, namely, a shotgun having a barrel less than eighteen
inches in length, which had been transferred without procuring and
forwarding to the Commissioner order forms as required by Section
2723, Title 20, United States Code, in violation of Section
2720(a), Title 26, United States Code."
3. 26 U.S.C.A. section 2726. Clause (a) was amended subsequent to
the date when defendant was alleged to leave violated this
section, viz., May 21, 1952, c. 320, section 3(b), 66 Stat. 88.
4. 52 Stat. 1060, 1068-1069, as amended 63 Stat. 910, 919, 20
U.S.C.A. sections 215, 216(a).
5. When the Bill embodying the National Firearms Act was on the
House floor it was stated during debate, that its purpose was "*
* * to provide for the taxation * * * to tax the sale or other
disposal of such weapons, and to restrict importation and regulate
interstate transportation thereof. * * * This is to stop gangsters
from buying machine guns." 78 Cong.Rec. 12548 (1934); see also 78
Cong.Rec. 11400 (1934).